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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

20 FLRA No. 89
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
Charging Party
Case Nos. 5-CA-381
5-CA-386
5-CA-406
DECISION AND ORDER ON REMAND
On September 3, 1985, the United States Court of Appeals for the
district of Columbia Circuit remanded this case to the Authority /1/ for
further consideration of the Judge's conclusion adopted by the Authority
in Department of the Air Force, Scott Air Force Base, Illinois, 14 FLRA
289 (1984), that the Respondent did not commit certain alleged unfair
labor practices and his recommendation that complaint be dismissed as to
those allegations. /2/
As explained by the court in its remand, the matters at issue pertain
to allegations that the Respondent violated section 7116(a)(1) of the
Statute by virtue of certain comments made by its supervisors to an
employee regarding his use of official time for representational
activities on behalf of the exclusive representative. Noting that the
Authority had adopted without discussion the Judge's conclusion that
these allegations should be dismissed, the court concluded that the
Judge's findings did not support this conclusion. However, noting
further that there might by other valid reasons on which the Judge's
ultimate conclusion could be sustained, the court remanded the case to
the authority for further consideration. Upon reconsideration, the
Authority has concluded, based upon an analysis of the facts and
circumstances as to these allegations in the entire record, discussed
below, that there are valid reasons to support the Judge's ultimate
conclusion that the consolidated complaint as to these allegations
should be dismissed.
In 1977 and 1978, the employee in question, Carl Denton, was involved
in the design of the Respondent's Consolidated Aerial Port Subsystems
(CAPS) project, a system for automating the tracking of cargo and
passengers world-wide for the Military Airlift Command. Denton was
informally assigned to be the Quality Assurance Manager for the project
and its further development in May 1979, because of his prior work, his
expertise in the subject matter, and the shortage of other civilian
employees with such abilities. He was unsuccessful in objecting to the
assignment on the basis that, as president of the Union, he devoted a
substantial amount of duty hours on official time to representational
functions. He received special training in his duties on the project in
June 1979. Although he continued to object to the assignment, the
assignment was formalized in October. However, in consideration of his
representational activities, two computer specialists in the military
service were assigned to assist Denton, some of the work was assigned to
an outside contractor, and much of Denton's other routine work was
transferred to other personnel. Continued development of the project
depended upon successful completion of audits scheduled to begin in
mid-January 1980, and the audits would not succeed if Denton's work was
not completed. Among other things, without Denton's work the outside
contractors could not do theirs.
Shortly before the audits, for the first time Denton formally
objected to his assignment to CAPS work, asserting to higher management
officials that, given the amount of official time that he devoted to
representational functions on the Union's behalf, his assignment to the
project constituted gross mismanagement. At about the same time, Denton
filed an unfair labor practice charge concerning the assignment. He did
not succeed with either objection. The Regional Director responsible
for investigating the charge ultimately declined to issue an unfair
labor practice complaint based on the charge, and higher management did
not terminate the assignment.
During the scheduled audits Denton was involved in collective
bargaining negotiations with the Respondent, as the Union's primary
representative. Although the record indicates that he was devoting
official time to these negotiations, it does not indicate whether he was
devoting all of his time thereto or whether he was also engaged in other
representational functions, and further does not disclose how much
longer the negotiations were expected to continue. However, because the
Respondent was having difficulties with the audits, one of Denton's
supervisors on the project asked him to devote some time to the audits
and suggested, for that purpose, that one of the upcoming negotiating
sessions be postponed. Denton declined, stating that the request was
upsetting. He was out sick for the remaining days of that week. Denton
filed a workmen's compensation claim for this time, which was denied
because it was not demonstrated that there was a causal connection
between the alleged incapacity and his employment.
On his return to work at the beginning of the following week, his
first-level supervisor counseled him concerning his participation, or
lack thereof, on the audits.
Later that month, near the end of the work day, Denton presented a
time schedule to his first-level supervisor for the following days. The
schedule indicated that he would be spending all of his time on
representational functions. After his supervisor and his second-level
the second-level supervisor (Serksnas) commented that it was unfair that
he was spending all of his time on representational functions and none
on his CAPS work. Denton commented that he thought it was fair, adding
that they would probably find a way to whittle down the union time.
Denton's response was that it was close to quitting time. He said
"goodnight," and proceeded to depart. As he was leaving, Serksnas said
that he did not think he was getting across to Denton and that he
(Serksnas) had lost his sense of humor. Stating that he had only said
"goodnight," Denton continued to walk out, which gave rise to comments
by Serksnas that if Denton did not start to do some work for him he
would take disciplinary measures, and an inquiry as to whether Denton
might file an unfair labor practice charge in response. Departing,
Denton's closing comment was that he didn't think that would be the
appropriate action.
The next day, Denton filed a schedule for that day, consistent with
his prior submission, indicating that he would be using all of that
day's time for representational functions. He was requested to and did
attend a meeting with Serksnas, accompanied by another Union
representative. Serksnas said that he was not satisfied with the amount
of time Denton was putting into the audits and that he was not up to
speed on the project. He said that he wanted Denton to prepare for
forthcoming new audits, and asked that certain of the contract
negotiations be postponed for that purpose, with the understanding that
Denton would be provided with make-up time later. He repeated that
Denton was not doing enough work and that if he did not pull his share,
Serksnas would have to take disciplinary action.
In addition to these facts, upon which the complaint is based, the
record shows the following: First, although Denton complained about his
assignment to the CAPS project, as indicated above, it is undisputed
that the Respondent acted in accordance with its rights in initiating
and continuing the assignment. Second, the use of a "reasonable" amount
of official time for representational functions was authorized under the
parties' collective bargaining agreement. Although this agreement
provision would not pertain to the negotiation of a new collective
bargaining agreement, as previously mentioned the record does not
establish how much of Denton's time was being devoted to negotiations as
compared with other representational functions. Third, there is no
indication in the record that the supervisor's actions were motivated by
union animus or out of any concern as to what the employee was doing
while performing representational functions. The supervisors were not
directly involved in the contract negotiations and the record does not
show that they had any contact with Denton in his performance of
representational functions. Nor is there a showing that any of the
Respondent's other officials made any comment to them regarding his
union activity. Fourth, based on Denton's testimony, in his capacity as
Union president he routinely assigned representational functions to
himself. It has not been shown that he could not have delegated or
assigned some of these functions to another Union representative.
The question we are asked to consider again is whether the Respondent
violated the Statute when its supervisors, Serksnas and Hohman, stated
to employee Denton in the above-described meetings that Denton was
spending too much time on union work and too little on the Respondent's
work and that disciplinary action might be taken against him if he did
not put more work into the CAPS project. The Authority concludes that
the conduct complained of, in the particular facts and circumstances of
this case, did not constitute a violation.
Based on the above-described facts and the entire record, it appears
that the events complained of arose out of a conflict between the
employee's need for official time for representational functions and the
Respondent's need for his time and work on the CAPS project, which
conflict reached an acute stage when the CAPS audits were in progress.
As the Authority has explained in other contexts, such conflicts between
employees' entitlements to official time for representational functions
under section 7131 of the Statute and the entitlements of management
under section 7106 of the Statute to manage consistent with an effective
and efficient Government can be expected, and when such conflicts arise,
the parties must recognize the need for and seek a reasonable
accommodation. See American Federation of Government Employees,
AFL-CIO, Council of Locals No. 214 and Department of the Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 19 FLRA
No. 23 (1985) (hereinafter "Council of Locals"), petition for review
filed, No. 85-1500 (D.C. Cir. Aug. 12, 1985); Department of the Navy,
Norfolk Naval Shipyard, Portsmouth, Virginia, 15 FLRA No. 165 (1984);
American Federation of Government Employees, AFL-CIO, Local 2272 and
Department of Justice, U.S. Marshals Service, District of Columbia, 9
FLRA 1004, 1014-15 (1982); American Federation of Government Employees,
AFL-CIO, New York-New Jersey Council of District Office Locals, Social
Security Administration and Department of Health and Human Services,
Social Security Administration District Office Operations, 7 FLRA 413,
417 (1981). In this regard, section 7101 of the Statute provides both
for the right of employees to participate in the collective bargaining
process through labor organizations of their own choosing and for the
safeguarding of the public interest in maintaining an effective and
efficient Government. Thus, the Authority has held that management
cannot deny official time for representational functions to a
representative of the exclusive representative unless it can show that
the use of official time will interfere with the accomplishment of the
agency's work. Nor may management reassign an employee unless it can
demonstrate that the employee's use of official time for
representational functions interferes with the employee's performance of
assigned work. On the other hand, the Authority has also explained that
an exclusive representative cannot claim that it is entitled to
negotiate or administer a contract provision regarding the allocation of
official time for representational functions by a particular employee
without regard to management's needs and requirements regarding the
performance of its assigned work. Council of Locals, 19 FLRA No. 23
(1985); Department of the Navy, Norfolk Naval Shipyard, Portsmouth,
Virginia, 15 FLRA No. 165 (1984); Harry S. Truman Memorial Veterans
Hospital, Columbia, Missouri and American Federation of Government
Employees (AFL-CIO), Local No. 3399, 14 FLRA 103 (1984); Department of
Health and Human Services, Social Security Administration, Baltimore,
Maryland, 18 FLRA No. 9 (1985). Cf. Bigelow v. Department of Health
and Human Services, 750 F.2d 962 (Fed. Cir. 1984) (an employee may not
refuse a training assignment based on a claim that he or she was
entitled to 100% official time for representational functions).
Having restated the foregoing principles, the Authority notes that
the question of whether employee Denton or the Respondent's supervisors
should have yielded concerning their mutual difficulties regarding
Denton's use of official time is not directly presented in this case.
However, the Authority concludes, based on the entire record, that it
was this issue which gave rise to and wholly underlies the dispute. The
CAPS project had reached a point where its further development depended
on the success of the audits. The work which had been assigned to
Denton was crucial for the audits, and that work was not being done. At
about the same time that the completion of his assigned work on the
project was becoming more important, Denton was devoting increasing
amounts of his time to the performance of representational functions,
and correspondingly less time to the project. Acutely aware of their
problems, the supervisors sought an accommodation. Based on our reading
of the record, the supervisors were merely seeking an accommodation with
Denton in discussing the matter with him. They needed Denton to perform
a certain amount of work during the brief period remaining before the
next audit of the CAPS project, which he alone was qualified to perform,
and therefore twice attempted to talk him into it. Denton did not
cooperate, however. At the first late afternoon meeting, he simply
smiled and walked out. At the second meeting the next day, he was
silent and unresponsive. On both occasions Serksnas, the second-level
supervisor, appears to have become exasperated. Interchangeably he
referred to his need for some work, his need for some time, how much
time the employee was spending on representational functions, and the
possibility of disciplinary action. In the context of the instant case,
the Authority concludes that Serksnas was solely and wholly interested
in reaching a meaningful accommodation with Denton regarding completion
of Denton's work on the CAPS project, and that Denton reasonably should
have understood that and that the Supervisor's comments were, in large
part, provoked by Denton's own unresponsiveness and seeming lack of
cooperation.
In this factual context, we are unable to conclude that Serksnas'
comment that it was unfair for Denton to schedule all of his time for
union activities constituted a violation of the Statute, particularly
where this comment amounted to no more than the converse of the
supervisor's additional statement that the employee was not completing
his assigned work. Regarding Serksnas' related comments on potential
disciplinary action, the court stated in its remand decision that it was
not clear to the court what the supervisor meant, suggesting that he may
have meant only that he would begin to deny the employee's unreasonable
requests for official time to perform representational functions in the
future. As the court further indicated, such a denial might accord with
the Respondent's rights, and a threat of such action would therefore not
constitute a violation of the Statute. Upon reevaluation of the entire
record, we conclude that these remarks, as explained above, were not, in
their entire context, unlawful threats against an employee for his
exercise of rights protected by the Statute, but rather an attempt by
management to impress upon the employee how important it was for him to
perform his work assignments during the period immediately ahead.
Moreover, in the absence of any record evidence of union animus by the
Respondent, and from the entire context of the conversations, we further
conclude that the supervisor's remarks should reasonably have been
understood by Denton as pertaining to the need for him to complete his
work on the CAPS project. Further, the record does not show that Denton
was in fact disciplined, or that any future requests for official time
to engage in protected activities (reasonable or otherwise) were denied,
or indeed that the Respondent denied the very requests that gave rise to
the incidents here in question. We are thus also unable to conclude
that Denton, or any other employee, was restrained, coerced, or
threatened in the exercise of any right accorded them under the Statute.
Accordingly, having reconsidered all the facts and circumstances of
this case in light of the court's concerns in remanding the case to us,
we reaffirm our original Order that the consolidated complaint in these
cases be dismissed.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 5-CA-381,
5-CA-386, and 5-CA-406 be, and it hereby is, dismissed.
Issued, Washington, D.C., November 27, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ National Association of Government Employees, Local R7-23 v.
FLRA, 770 F.2d 1223 (1985).
/2/ The court affirmed the remainder of the Authority's findings and
conclusions.